Wetaka & Others v Namonye (Miscellaneous Application 212 of 2024) [2025] UGHC 270 (12 May 2025)

Full Case Text

# THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA AT MBALE **MISCELLANEOUS APPLICATION NO. 212 OF 2024** (ARISING FROM CIVIL SUIT NO. 034 OF 2024)

- 1. WETAKA HASHIM - 2. WODEYA HAKIM - 3. MALIKI SHABAN

4. NABIGUMBA DAVID:::::::::::::::::::::::::::::::::::

#### **VERSUS**

NAMONYE MICHEAL WASUKIRA ::::::::::::::::::::::::::::::::::::

## BEFORE: HON. JUSTICE LUBEGA FAROUQ

## **RULING**

## 1. Introduction

- 2. The Applicants brought this application by way of summons in chambers against the Respondent under Section 33 of the Judicature Act, (now Section 37 of the Judicature Act, Cap.16), S.98 of the Civil Procedure Act, Cap. 282, and Order 5 Rule 32 of the Civil Procedure Rules SI 71-1, seeking for orders that- Civil Suit No. 034 of 2024 be dismissed with costs for non-service of the summons, and for commencing a suit against wrong parties ( $3rd$ and $4th$ applicants). - 3. The application was premised on the grounds set out in the supporting affidavit deposed by the 1st applicant **WETAKA HASHIM**, briefly the grounds are that- - a) The Respondent filed civil suit No. 034 of 2024 against the Applicants on $23rd$ day of May, 2024; - b) Summons to file a defence were issued by court on the 29th day of May, 2024, and the Respondent was supposed to serve them to the Applicants within 21 days from the date of issuance;

- c) The mandatory twenty-one days for service of summons expired on the 19th day of June, 2024 before the Respondent could serve them to the Applicants; - d) The Respondent did not seek leave for extension of time within which to serve the summons; - e) The Applicants learnt of the existence of Civil Suit No. 034 of 2024 during the hearing of Miscellaneous Application No. 123 of 2024; - Civil Suit No. 034 of 2024 is incurably defective, and the same ought to $\mathbf{f}$ be dismissed with costs. - 4. The application was opposed through an affidavit in reply deposed by the Respondent NAMONYE MICHAEL WASUKIRA, on grounds briefly that- - a) The Applicants were dully served with the summons to file a defence within the 21 days, but they deliberately chose not to file a defence in time; - b) Miscellaneous Application No. 123 of 2024 was jointly served with the summons to file a defence in the main suit to the applicants through the chairperson LCI of Mbale Central Market on 29th day of May, 2024; - c) The Applicants chose to flee from the site when the process server went to serve them with the court summons; - d) The process server tried to reach out to the Applicants via their mobile telephone numbers, but they ignored to pick his calls; - e) On the 13th day of June, 2024, the Applicants filed an affidavit in reply to Miscellaneous Application No. 123 of 2024 which they picked from the chairperson LCI; - f) The $3^{rd}$ and $4^{th}$ Applicants are in possession of the suit; thus they were not wrongly sued; - g) It is in the interest of justice that this application is dismissed with costs.

# 5. Background

- 6. The background of this application is that on the $23^{rd}$ day of May, 2024, the Respondent filed Civil Suit No.034 of 2024 together with Miscellaneous Application No. 123 of 2024 against the Applicants. - 7. The Applicants argue that the Respondent did not serve them with the summons to file defence in Civil Suit No.034 of 2024 within the required 21 days from the date of issue of the said summons, which makes the main suit incurably defective. - 8. On the other hand, the Respondent contends all the Applicants' allegations and state that the Applicants were served with the summons to file a defence within the required period of 21 days, but they deliberately chose not file their written statements of defence.

## 9. Representation

- 10. The Applicants were jointly represented by of M/S Wakosese Advocates while the Respondent was represented by M/S Luchivya & Co. Advocates. - 11. The parties filed written submissions which I have considered in determination of this application.

## 12. Preliminary objections

13. The Respondent's counsel through written submissions raised two preliminary objections to the effect that; the instant application was brought under a wrong law and procedure, and that the Applicants' affidavit in rejoinder was filed out of the schedules given by court without leave of court.

# 14. First Preliminary Objection

- 15. The Respondent's counsel submitted that the instant application was brought under section 98 of the Civil Procedure Act, Cap. 282 and Order 50 Rules 1, 2 & 3 of the Civil Procedure Rules which is a wrong law and procedure. - 16. Counsel for the Respondent further submitted that Section 98 of the Civil Procedure Act is reserved to situations where there is no express law or rule on the matter before court. To fortify her argument, she cited the

ruling of this court in the case of Khainza Milly & 4 others Vs. Mweru Mike Henry, Miscellaneous Application No. 437 of 2023, where it was inter alia held that-

> ".... Section 98 of the Civil Procedure Act can only be invoked where there is no express law or rule on the matter before court..."

- 17. In response, the Applicants' counsel submitted that the present application concerns failure to serve summons on the Applicants within the 21 days as prescribed under Order 5 Rule 1 (3) of the Civil Procedure Rules. That as such, this application falls within the ambit of Order 5 of the Civil Procedure Rules. - 18. That the inclusion of section 98 of the civil procedure Act does not invalidate the application. He cited the case of Stanbic Bank (U) Ltd Vs. Uganda Crocs Ltd [2013] UGCA 13, where it held that-

"Section 98 of the Civil Procedure Act can be invoked to support existing procedural grounds where justice requires so."

## 19. Determination of court

- 20. I have carefully read the submissions of counsel, and the wealthy of authorities citied to advance their respective arguments. However, I note that the instant application was brought by way of summons in chambers under Section 33 of the Judicature Act, (now Section 37 of the Judicature Act, Cap. 16), S.98 of the Civil Procedure Act, Cap. 282, and Order 5 Rule 32 of the Civil Procedure Rules SI 71-1. - 21. I observe that the present application majorly seeks for an order that Civil Suit No. 034 of 2024 be dismissed for non-service of the summons. - 22. Order.5 R 1 (2) of the Civil Procedure Rules SI 71-1 provides that-

"Where summons have been issued under subrule (1) of this rule service of the summons shall be effected within twenty-one days from the date of issue; except that the time may be extended on application to the court, made within fifteen days after the expiration of the twenty-one days, showing sufficient reasons for the extension."

23. Where there has not been compliance with the service of summons within the 21 days, and no application has been made for extension of time or the application for extension of time has been dismissed, the suit shall be dismissed without notice. (Ref. Order 5 Rule 1 (3) (c) of the Civil Procedure $Rules).$

24. Order 5 Rule 32 of the Civil Procedure Rules SI 71-1 requires that-

"All applications under Order 5 shall be made by summons in chambers."

- 25. The instant application was brought under order 5 of the Civil Procedure Rules which noticeably is the relevant provision for issue and service of summons. The procedure is by way of summons in chambers as stated under Order 5 Rule 32 of the Civil Procedure Rules. I honestly believe that the Applicants cited the right provisions of the law, and complied with the required procedure in filing this application. - 26. The Respondent's counsel cited the case of Khainza Milly & 4 others V. Mweru Mike Henry, Miscellaneous Application No. 437 of 2023. However, with due respect, the decision in the cited case is distinguishable from the instant case. The applicant in the case of Khainza Milly (supra) brought the application under the general section 98 of the Civil Procedure Act to review the decision of the Deputy Registrar whereas there is a well-established procedure to appeal against the decisions of the registrars provided for under order 50 rule 8 of the Civil Procedure Rules. - 27. In the view of my analysis above, I find that the present application is properly before court. It was brought following the correct provisions of law and the procedure. I therefore overrule the first preliminary objection. - 28. Second Preliminary Objection - 29. The Respondent's counsel submitted that the Applicants' affidavit in rejoinder filed on 17/04/2025, two days after filing the Applicants' written submissions on $15/4/2025$ was procedurally incorrect. That the parties were given schedules to file written submissions, a presumption that

parties had closed filing pleadings. Counsel moved court to be persuaded by the decision in the case of Nasser V. I. S and M Holdings Ltd and another, Miscellaneous Application No.415 of 2023 where the court struck out an affidavit in rejoinder that had been filed without seeking leave of court.

- 30. The Applicants' counsel submitted in response that the Respondent's objection is misconceived. He further argued that the affidavit in rejoinder does not require leave of court. That the rejoinder was filed before the matter was set for ruling, thus it was properly and lawfully filed. - 31. Counsel cited the case of Orient Bank Ltd V. Avi Enterprises Ltd, Miscellaneous application No.6 of 2013 for the proposition that an affidavit in rejoinder is permitted to clarify or respond to new issues raised in the affidavit in reply. Unless, it is filed late or contains scandalous or irrelevant content, it should not be struck off lightly. - 32. Determination of court - 33. Before I determine whether the affidavit in rejoinder should be struck out or not, it is pertinent to note that the time frame required for filling an affidavit in rejoinder is not specifically provided for under the law. However, in the case of Stop & see (U) Ltd V. Tropical Africa Bank Ltd (HCMA No. 333 of 2010, the court provided a clear up on this issue. It thus held that-

"A reply or defence to an application has to be filed within 15" days. Failure to file within 15 days would put a defence or affidavit in reply out of time prescribed by the rules. Once the party is out of time, he or she needs to seek the leave of court to file a defence or affidavit in reply outside the prescribed time. This principle is applicable to affidavits in rejoinder, as they are filed to respond to the affidavits in reply. Therefore, while the Civil Procedure Rules do not specify a timeframe for filling an affidavit in rejoinder, it is advisable that it is filed within a reasonable time." - 34. In the present case, I note that the Respondent filed an affidavit in reply on 23/10/2024, and the same was served on the Applicants' Advocates on the same date. The record of court shows that the Applicants' affidavit in rejoinder was filed on 25/03/2025. This is a period of about six months from the time when the Respondent filed an affidavit in reply. - 35. The parties appeared in court on the 25/03/2025, and court gave directions for the parties to file submissions. This gave court an impression that the parties had closed filing their respective pleadings/ evidence since this matter proceeded by way of affidavit evidence. - 36. I have previously held in the case of **Bugishu Muslim District Council** V. Musa Kalokola & 2 others, Miscellaneous Application No. 105 of 2024 that-

"Where the law is silent on the timeframe for doing a particular act, the same should be done within a reasonable time. Without a justifiable reason to suggest otherwise, reasonable time *should not be considered beyond 30 days"*

37. I have not found any material reason advanced by the Applicants to explain why it took them over six months to file an affidavit in rejoinder to the Respondent's affidavit in reply. This is unjustified dilatory conduct which cannot be condoned by this court. I would for that reason uphold the second objection, and strike out the Applicants' affidavit in rejoinder.

## 38. Determination of the application on the merits

- 39. Analysis of court - 40. This application presents two issues for determination by this court, that is - a) Whether the Applicants make a proper case for striking out Civil Suit *No. 034 of 2024 without notice for non-service of summons?* - *b) What remedies are available to the parties?* - 41. Issue One: Whether the Applicants make a proper case for striking out Civil Suit No. 034 of 2024 for non-service of summons?

- 42. The Applicants' case is that the Respondent filed Civil Suit No.034 of 2024 against them, but the Respondent did not serve them with the summons to file a defence within the stipulated time under the law. The Applicants expound their argument by stating that the summons in Civil Suit No.034 of 2024 was issued by court on the 29th day of May, 2024, and the same were supposed to expire after 21 days. - 43. The mandatory twenty-one days for service of summons expired on the 19th day of June, 2024 before the Respondent could serve the summons on to the Applicants, and the Respondent did not apply for extension of time to serve the summons. As a result, the Applicants submit that Civil Suit No.034 of 2024 is a nullity, and the same ought to be struck out without notice to the Respondent. - 44. In response, the Respondent states under paragraph 5 of his affidavit in reply that the summons to file a defence in Civil Suit No. 034 of 2024 were duly served on the Applicants within the 21 days, but the Applicants deliberately chose not to file their defence in time. - 45. Further, in paragraph 6 of the affidavit in reply, the Respondent states that the Applicants were served with the summons to file a defence in Civil Suit No. 34 of 2024 together with the notice of motion in Miscellaneous Application No. 123 of 2024, through the chairperson LCI of Mbale Central Market on 29th day of May, 2024. - 46. That the Applicants were able to file an affidavit in reply to Miscellaneous Application No. 123 of 2024 from the service they received from the chairperson LCI, but adamantly neglected to file their respective written statements of defence. To buttress his case, the Respondent attached the copy of the affidavit of service deposed by a one Wanjala Andrew Mulati, a clerk and process server attached to the Respondent's Advocate's law firm. - 47. Service of summons is a legal procedure clearly expounded under Order 5 of the Civil Procedure Rules. O.5 R 1 (2) of the CPR. It provides that-

"Where summons have been issued under subrule (1) of this rule service of the summons shall be effected within twenty**one days** from the date of issue; except that the time may be extended on application to the court, made within fifteen days after the expiration of the twenty-one days, showing sufficient reasons for the extension."

48. In the case of Bitamisi v Rwabuganda (Civil Appeal 16 of 2014) 2018 **UGSC 53**, it was held that-

> "When the summons are issued, the Plaintiff or whoever applied for them, must serve the other party within 21 days. That under Order 5 R 1(3) (b) if the application for extension of time is not filed within the 15 days pursuant to 0.5 r. 1(2), the suit shall be dismissed without notice."

- 49. It seems to me from the averments of both parties in their respective affidavits that it is no doubt this court issued the summons in Civil Suit No.034 of 2024 on 29/05/2024, and the same was supposed to be served on to the Applicants within 21 days from the date they were issued by court. - 50. The Applicants deny being served with the summons in Civil Suit No.034 of 2024 within the required time under the law. On the other hand, the Respondent relies on the affidavit of service deposed by a one Wanjala Andrew Mulati, a clerk and process server attached to the Respondent's Advocates' law firm which is attached to the Respondent's affidavit in reply opposing this application to prove that the Applicants were duly served with the summons. - 51. I have reviewed the affidavit of service dated 13th/06/2024 attached to the Respondent's affidavit in reply. In the said affidavit, the deponent therein identifies himself as a clerk and process server attached to the Respondent's Advocates' law firm. He avers that on 29/05/2024, he received copies of the notice of motion in Miscellaneous Application No.

123 of 2024 and the summons to file a defence to be served on the Defendants (now Applicants).

- 52. That on the same day, he went to Mbale Central Market to effect service of court process on the Applicants. When he reached at the market, he reported to the chairperson LCI to whom he introduced himself and explained the purpose of his visit. He then went with the chairperson LCI to the suit property situate behind KCB Bank, Mbale branch, and on reaching there, the Applicants ran away. He then called them on their mobile telephone numbers, but they ignored to pick up his calls. He gave the documents to the chairperson LCI, and left. - 53. The affidavit of service deposed by Wanjala Andrew Mulati reveals that he did not serve the summons to the Applicants in person. There is no proof on record to show that the chairperson LC1 of Mbale Central Market whom the clerk left the summons with, was able to serve them to the Applicants. - 54. It would in my view be speculative and erroneous to say that because the Applicants filed a reply to Miscellaneous Application No. 123 of 2024, it was obvious that they received service of the summons as well. The law requires that service of summons must be made to the defendant in person or his/her appointed agent.

## 55. Order 5 r.10 Civil Procedure Rules SI 71-1 provides that-

"Wherever it is practicable, service shall be made on the defendant in person, unless he or she has an agent empowered to accept service, in which case service on the agent shall be sufficient."

- 56. It is clear from the affidavit of service by Wanjala Andrew Mulati that he did not serve the Applicants with the summons in person, but instead he left the summons with the chairperson LCI of Mbale Central Market. - 57. The fundamental question to be asked is whether the chairperson LCI of Mbale Central Market was a recognised agent with the authority to receive service of court process on behalf of the Applicants?

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58. In the case of Erukana Omuchilo V. Ayub Mudiiwa [1966] EA 229 cited with approval in the case of Dr. B. B Byarugaba V. Kantarama (Civil Miscellaneous Application 229 of 2019) [2020] UGHC 216, the court held that-

> "Service on the defendant's agent is effective service only if the agent is empowered to accept service."

59. Order 3 r.2 of Civil Procedure Rules (Supra) clearly spells out who a recognized agent is. It thus provides as follows-

> "The recognized agents of parties by whom such appearances, applications and acts may be made or done are—

> (a) persons holding powers of attorney authorizing them to make such appearances and applications and do such acts on *behalf of parties; and*

(b) persons carrying on trade or business for and in the names of parties not resident within the local limits of the jurisdiction of the *court* within which limits the appearance, application or act is made or done, in matters connected with such trade or business only, where no other agent is expressly authorised to make and do such *appearances, applications and acts."*

- 60. In my comprehension of Order 3 Rule 2 of Civil Procedure Rules (supra), I do not find the chairperson LCI of Mbale Central Market with whom the process server left the summons with, to fall within the ambit of description of the recognised agents under the law with the authority to receive service of court process on behalf of the Applicants. - 61. It was improper for the process server of the Respondent's advocates' law firm to delegate his work to the chairperson LCI of Mbale Central Market to complete service of court process on to the Applicants on his behalf. - 62. In sum, I find that the Applicants were not effectively served with the summons in Civil Suit No. 034 of 2024, neither were they served through their recognised agent as per authorities highlighted in the foregoing.

- 63. The fate of the suit where there has not been effective service of summons, and no application for extension of time to serve the summons has been made within fifteen days after the expiration of the twenty-one days is that such a suit suffers a dismissal without notice. (see Bitamisi V. Rwabuganda (Supra). - 64. Since I have found that the summons in Civil Suit No.034 of 2024 was not duly and effectively served on to the Applicants, nor their agents. Civil suit No.034 of 2024 is hereby dismissed in accordance with Order 5 Rule 1(2) of the CPR (Supra) and costs are awarded to the Applicants.

I so order.

**LUBEGA FAROUO** Ag. JUDGE

Ruling delivered via emails of the Advocates of parties on this 12th day of May, 2025